IN THE COURT OF APPEAL

AT MALINDI

(CORAM: WARSAME, MUSINGA & SICHALE, JJ.A.)

CIVIL APPLICATION NO. 186 OF 2020

BETWEEN

YUSUF MWERO MWAZENGELE.................................1^ST APPLICANT

THE HON.ATTORNEY GENERAL................................2^ND APPLICANT

THE REGISTRAR OF TITLES, MOMBASA.................3^RD APPLICANT

AND

BENSON BAYA YAA (Suing as the Administrator                                

of OMAR BAKARI YAA (Deceased)……….…….…….....RESPONDENT

(Being an application for stay against the Judgment of the Environment and Land Court of Kenya at Malindi (Olola, J.) dated 27th May 2020

in

E.L.C Suit No. 93 of 2017.)

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RULING OF THE COURT

1. UPON perusing the Notice of Motion dated 29th June 2020 by Yusuf Mwero Mwazengele, the 1st applicant, brought under rules 5(2)(b) and 41 of the Court of Appeal Rules, where the 1st applicant is seeking stay of execution of the judgment issued by Olola, J. on 27th May 2020 and all other subsequentorders pending hearing and determination of an intended appeal; and

2. UPON perusing the affidavit of the 1st applicant sworn on 29th June 2020 in support of the application which has not been responded to by the respondent, despite service of the application and a hearing notice upon the respondent’s advocates, M/S K. Lughanje & Company Advocates; and

3. UPON perusing the 1st applicant’s advocate’s submissions where he has stated, inter alia, that the 1st applicant is the registered owner of the property known as Plot No. 80 Mida; that his ownership was challenged by the respondent before the trial court; that the 1st applicant filed a statement of defence; that the hearing was done in the absence of the 1st applicant due to his advocate’s mistake; that the trial court failed to deal with the 1st applicant’s application dated 26th June 2019 seeking to set aside the ex-parte proceedings and grant him an opportunity to be heard; that the trial court ordered the suit land be transferred to the respondent; that the 1st applicant has filed a notice of appeal against the judgment; and that unless the orders sought are granted the judgment/decree shall be executed; and

4. HAVING considered the principles that guide this Court in determining applications under rule 5(2)(b) applications as summarized in Stanley Kangethe v Tony Ketter & Others [2013] eKLR, and noting that the applicant has demonstrated that it has an arguable appeal and unless the orders sought are granted the intended appeal shall be rendered nugatory; having reached this conclusion, we make the following orders:-